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Things That Need To Be Said: Victims, Murder, and Judgement

Unfortunately, the events that have unfolded during the last few months relative to using genetic genealogy data bases in order to identify murder victims and perpetrators of those murders have divided the genetic genealogy community.

Polls show that most people are in favor of this usage, some polls approaching 90% in favor. Within the community, the opinion is divided, with many of the leaders on opposite ends of the spectrum for various reasons.

I’d like to discuss this division and the inherent judgement – as rationally and as unemotionally as this topic can be.

I’m not going to list cases or examples. There have been many since the first case identified through genetic genealogy, the Golden State Killer, broke in May of 2018. At that time, the GSK case was plastered all over every news outlet, but today the announcements are less dramatic, approaching routine, often only covered in the local news. I don’t know whether that’s a good thing or a bad thing. These cases have become normalized in the same way that discovering unknown parents or siblings has in the past couple of years. It’s a daily unremarkable occurrence now – unless it happens to you of course.

GedMatch was utilized to solve the earliest cases.

In late January, Family Tree DNA announced that they too are allowing law enforcement uploading, implementing a more restrictive approach than GedMatch wherein controlled, pre-screened and registered forensic samples can be upload after approval by law enforcement for matching and will be tracked internally by Family Tree DNA. These cases all involve violent crimes meaning unidentified victims, murder and rape. You can read their Law Enforcement FAQ here and their Law Enforcement Policy here. As opposed to early click-bait news articles, Family Tree DNA has not and never did “turn over” their data base to the FBI and neither did GedMatch. Forensic kits work the same way everyone else’s kits work – and nothing more. Please also note that this matching and identification process is the exact same process created several years ago within the community to identify unknown parents.

Ancestry, 23andMe and MyHeritage do not support law enforcement matching.

If you don’t want your kit utilized for law enforcement matching. You can opt out of matching at GedMatch by selecting the “research” option where you can see matches to the kit, but other people can’t see you.

I don’t think there’s a soul alive that will argue that we don’t want rapists and murderers apprehended and off the streets. We individually and as a society want them to be identified and held accountable for their crimes. In some cases, the perpetrators are living freely and don’t appear to have committed additional crimes, but still, they need to pay for what they did. Depriving another human of their life or raping them is simply not acceptable. That’s how the justice system in the US works and the job of law enforcement to find those who break the law and bring them to justice.

Another aspect of forensic DNA matching that has gone largely unmentioned is that if a person is wrongly convicted of a violent crime, and DNA evidence from the scene remains, DNA matching can also exonerate the innocent. DNA matching technology has improved dramatically in the past decades, moving from the 26 CODIS markers to the 700,000+ SNP markers utilized today for genealogy matching.

The Great Divide

However, the great divide is whether or not law enforcement should be allowed to upload forensic samples extracted from the victim or taken from other evidence at the crime scene (such as blood or semen, for example) to genetic genealogy data bases in order to identify these people – and in what circumstances.

In a recently solved case, a live-born baby abandoned intentionally to freeze to death by his mother in a ditch in 1981, in the northern US, in February, was identified which also identified the parents. This case has illuminated a huge divide in the community.

It has also surfaced something I had never really thought about, illustrating why we need to attempt to remain free from judgement, as much as possible. By this, I mean that we need to listen to the points of all parties involved, weigh what they are saying and try to understand their perspective. That doesn’t mean we need to change our minds, but we do need to see if the “opposing counsel” has points that need to be considered. Unfortunately, when it’s a topic we feel strongly about, it’s so easy to rush to judgement.

Sometimes the problem is a lack of education or understanding.

The Legal Process

It recently came to light from a discussion that someone outside the US had no comprehension of how the US law enforcement process works. In the US, there are three distinct stages:

Investigation and gathering of evidence – This is where DNA matching is BUT ONE CLUE in the investigatory steps of whether a crime occurred and who should be charged. When the investigators are finished, they may arrest someone, book them into jail, and send the paperwork to the prosecutor who will decide what charges, if any, are to be filed against that person.

Prosecution – From the time the charges are filed, the prosecutor’s job is to present the evidence to the court that a crime was committed along with any extenuating circumstances. The attorney for the accused person presents the evidence to favor them, such as an alibi, an insanity plea, or evidence that they are somehow mentally incapacitated.

Courts -. While they are awaiting trial, the judge will decide if the person arrested can post bail in order to be released from jail while awaiting their trial date. Different factors are taken into consideration. Whether or not they are a flight risk and the severity of the crime rank high among the criteria. Ultimately the person is either convicted or found not guilty of the charges. If they are found not guilty, it’s all over. If they either plead guilty or are found guilty of some or all of the crimes with which they were charged, then the sentencing phase begins wherein the judge decides what punishment fits the crime and considers any extenuating circumstances. For example, when someone is found guilty but insane, they won’t serve time in prison, but will be remanded to a psychiatric facility for treatment instead. Many factors are involved with sentencing including victims’ statements, statements from the families of the victims, extenuating circumstances and any requests for leniency.

The person from outside the US thought that the DNA evidence automatically just convicted the person. Even people in the US may be reacting emotionally, without understanding the steps in the legal process designed to be as fair and equitable as possible.

This is Intensely Emotional

Over the last several weeks, I’ve had the opportunity to talk individually with many community members. I’ve come to realize that these cases bring to the surface issues of rape, murder, incest, parental abandonment and child abuse (including sexual) by parents and family members that people continue to love anyway. Needless to say, this situation creates extremely conflicting emotions and resurrects long-buried pain for many.

Almost everyone I’ve talked to has their own intensely personal and oftentimes gut-wrenching reason for feeling the way they do about the situation at hand. The revelations have been as astounding as they have been heartbreaking and are a true testament to the triumph of the human spirit. People can and do survive, but not unscarred. Most people hide those scars – sometimes from everybody and sometimes forever.

When I hear their stories, I suddenly understand WHY they personally feel the way they do, even if I don’t agree. It takes the edge off of the purely academic discussion of the technicalities of why or why not these data bases should or should not be utilized.

Suffice it to say, that cow has left the barn. They are being utilized and probably were before we knew it. It’s much better to have a process in place and consumer knowledge that it’s occurring, allowing people to make their own participation decisions.

Do I wish this process had been handled a bit differently? Yes, certainly, but this is literally the frontier – the leading bleeding edge. I’m afraid that if someone hadn’t taken the bull by the horns, it would never have happened because the topic would have been debated into oblivion. There is simply no way to achieve an agreement from polar opposite yes/no positions involving topics this emotional.

I’m actually surprised that this didn’t happen sooner, because the technology has been available for years.

There are some people who stand to benefit personally from one position or the other or have an ax to grind. After eliminating anyone with obvious opportunistic motivations or bias from the mix, the rest of the people have a very valid reason for feeling the way they do. People’s feelings can’t be right or wrong – whether or not I agree with them.

We don’t need to demonize the individual to disagree. It’s OK to disagree without attacking others and still respect them as individuals and remain on speaking terms. Perhaps the understanding we gain will even deepen our appreciation for them and what they have endured. Agreement isn’t required for that to happen.

It benefits us all to row in the same direction, together. We have the same love, genetic genealogy.

My Own Perspective

I am a supporter of utilizing the tools at our disposal for identifying the victims and perpetrators of violent crimes, defined as rape and murder. I would personally be comfortable adding aggravated assault in cases such as where an 80+ year old woman was beaten nearly to death in a robbery, but that’s not my call to make.

For now, I would be happy to simply process the backlog of the hundreds of thousands of rape kits that have never been tested and identify the plethora of cold case unknown murder victims that include many children.

This is very personal to me for a variety of reasons. I’m going to share one of them with you.

Here’s where I take the deep breath.

My child was kidnapped more than 30 years ago and was missing for several weeks. Even today, just thinking about or typing this, I can feel my chest tighten, my heart rate elevate and my blood pressure rise. There are simply no adequate words.

My child was one of the lucky ones, “recovered” several weeks later in another state roughly 1000 miles away.

The word terror doesn’t even begin to describe my emotions.

There was not one minute of one day that I didn’t very clearly know that my child might never come home.

That my child might already be dead, buried in some shallow grave I would never find.

Or with animals gnawing on their tiny body.

Maybe starving.

Maybe hurt but not dead…yet.

Maybe floating bloated in some river someplace.

Or, that they might be being used in the child pornography industry or even worse, tortured in snuff movies. (If you don’t know what that is, just trust me and don’t google it.)

If you sit down for one minute, put yourself in my position and think about this as your own child, or grandchild, you will understand fully why I fully support the use of genetic genealogy databases for the identification of victims and those who victimize.

Even if I didn’t support this position, it’s a done deal now. It’s already been happening for almost a year.

In the case of the mother who abandoned the baby to die in the freezing cold – if there are extenuating circumstances that should be considered in terms of the mother’s behavior or mental condition, they will be revealed at the trial and taken into consideration.

If a rapist or murderer should receive leniency or be judged mentally incompetent in other cases, that evidence too will come before the judge. Let’s not conflate the investigation and gathering of information and evidence stage with the prosecution and sentencing after a perpetrator either pleaded guilty or was found guilty. We should NOT stop investigating and identifying victims and perpetrators because some of the people who committed these crimes might have extenuating circumstances. The evidence must stand on its own – all of it, together as a whole.

Here’s the important part. Without the genetic genealogy data bases, the victims and perpetrators of these cold cases would never be identified. My child could have been one those bodies. I will never forget. Every time a new victim is identified, I’m grateful all over again that it’s not my child but so glad for the families to finally have closure.

At the same time, as we talk to and read what our fellow genetic genealogists have to say, we must realize that while they aren’t telling you their personal story, many of which are simply far too intimate and painful to divulge, they have them just the same and those experiences inform their opinions. They may be writing or speaking from a place of great sorrow and betrayal, from a place of anger or from a place of healing – but they are speaking from an extremely personal space. All you are hearing is their opinion based on things you don’t understand.

It’s possible to empathize, and still disagree.

I can tell you with no hesitation whatsoever that if my child had not been found, I would go to the literal ends of the earth for the identification of their body AND for the conviction of their kidnapper/murderer.

Every time I read about an unidentified body, I remember those days, so seared into my memory that I can never forget.

So seared in that I still, to this day, have nightmares and wake up terrified – awake for the rest of the night.

So seared into my brain that 3+ decades later I still can’t even talk or write about this without crying. I don’t mean an escaped tear – I mean full on tears-streaming-down-my-face embarrassing ugly-crying.

Every. Single. Time.

So seared into my memory that today I still utterly despise the kidnapper with every ounce of my being.

That said, I was truly one of the lucky ones, as was my child.

I can’t offer these less fortunate families their family member back, bring their child back to life or un-rape them, but I can help to offer them closure and justice by including my DNA in both data bases. I fervently hope my DNA can help.

At this point with the technology and data bases available, it would be negligent of law enforcement NOT to utilize the available tools to identify victims and their murderers. As a society, why would be not embrace this opportunity so long as people have the opportunity not to participate if they wish?

In or Out?

My DNA absolutely stays in the databases.

I was rather shocked at first, last May when the GSK case first broke, and I didn’t know what to think, truthfully. Over the ensuing months, my position has become clear in my own mind, especially as I’ve seen the results pour forth.

My biggest regret is the division within the community that this has caused.

My fear is the knee-jerk over-regulation that may follow based on inaccurate reporting, fear and a rush to “do something.”

It’s Your Decision

As strongly as I feel about this topic, I encourage everyone to listen to the different perspectives and not stand in judgement of the people voicing those opinions. We don’t know what that walk in their moccasins looked like. It may have been and may still be torturous. We often move on, only to have the thin scab ripped off when emotional situations involving the most primal bond of nature, mothers and their entirely dependent babies, rape and murder surface.

I don’t know anyone who hasn’t been individually affected by these horrific crimes, meaning rape or murder – either personally or someone within their family. If you think your family is exempt, it’s probably because the victim has never divulged what happened.

When all is said and done, you’ll need to make your own personal decision about how to handle your DNA according to your life’s journey, conscience and moral compass. You can leave it in the data bases if it’s already there, transfer it in to both to support law enforcement matching, or you can opt out entirely. Make the decision that’s right for you. The good news is that with an off-on toggle switch, you can change your mind in either direction at any time.

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Please note that I am a member of the Citizen’s Panel formed in late February by Family Tree DNA to provide feedback on ethics and policy questions. I provided a list of questions, concerns and suggestions to Family Tree DNA after their initial law enforcement announcement in late January and before their recent update on March 12th. The Citizen’s Panel is an entirely volunteer (uncompensated) position and I serve along with:

Amy McGuire – Lawyer and Leon Jaworski Professor of Biomedical Ethics and Director of the Center for Medical Ethics and Health Policy at the Baylor College of Medicine

Bob McLaren – An early adopter of genetic genealogy and FamilyTreeDNA volunteer Group Project Administrator

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113 thoughts on “Things That Need To Be Said: Victims, Murder, and Judgement”

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I appreciate your post about this and your plea that folks not turn to shouting at each other. I do want to correct something here about THE COURTS. As an attorney who has intimate experience with the use of DNA evidence in criminal cases, I want everyone to know that the legal system does not work as prettily as described. There are certainly plenty of cases where DNA evidence alone is what leads to a conviction and where that DNA evidence is shoddy. We all would like to believe that our prosecutors and our criminal labs act only to convict the guilty but that is not how it goes. Folks on the prosecution side of this equation are too often biased and just believe that they know whether someone is guilty and then head off to do whatever they can (usually within the law but sometimes not) to get a conviction. And that can involve using very poor DNA evidence. If the defense can find and afford an excellent expert witness to debunk the reliability and validity of the DNA evidence, then the accused may have a fair shot at justice, but most defendants are poor and rely on state-provided defense attorneys who do not have these funds available. Also, as all attorneys know in their heart, juries and judges rarely really believe that an accused in not guilty. Human bias is that an accused person is guilty. The battle is uphill for all defendants.

So, there is a really good reason for the 4th amendment protection against search and seizure without probable cause, and it should apply to DNA evidence.

Hope you all read this because it is important that we Americans understand the flaws in our legal system so that we understand why there are certain protections

After analysis and thought and considering the 14th Amendment the ‘opt out’ option for law enforcement matching should be the default on Family Tree. It’s the only ethical thing to do. Opt In should be a deliberate choice made by those who have accounts on Family Tree.

As someone who administers my own Family Tree account and thirteen others this has become my position. Even those who are in Family Tree Projects are opted out automatically. Why? Because the project managers are the custodians of those accounts and it’s their responsibility and the ethical thing to do to protect those accounts and their privacy.

In the same sense Family Tree is the custodian of all the accounts. The ‘opt out’ option should be the default.

After receiving the new privacy email from Family Tree, I immediately wrote all the accounts I administer and advised them that I had opted out of law enforcement matching on their accounts and asked them to let me know if they wanted to opt in and I would change it. Only one person has responded. This response has helped me take the position that ‘opt out should be the default.

The person who responded was rather irate because she didn’t even remember that she had tested for me three years prior. I had to gently remind her that she had tested three years ago for me and she sheepishly replied that she now remembered. She stated that she had no interest in her account.

Since I received no other responses from those I emailed this made me realize there are probably at least hundreds of accounts on Family Tree which are basically inactive and the same as those I administer. Some may be deceased or others completely lost interest and do not check their accounts and pay no attention to emails sent to them by Family Tree. Should they lose their 14th Amendment rights because of this? No!! It’s Family Trees responsibility to do the ethical thing and make ‘opt out’ the default.

A person with an active account on Family Tree should have to deliberately select to ‘opt in’ to Law Enforcement matching not the other way around.

You are so right! The decision on ‘opting’ should be to protect the donor! There is no protection from companies ‘changing their Terms’ there is never ‘any consultation’ – they just do what they like and we have little choice to continue to get served’! Hence ‘win win’ for enforcement. Opt out should always be the default in case of any broken communication chain!

I would point out again that fingerprint evidence (not nearly as accurate) has been used for years. People are much more likely to be convicted on shaky fingerprints than on DNA. I expect that in 10 or 15 years we will think of DNA evidence as being as common as a fingerprint and people will be less anxious about it.

Excellent post! One point is essential to understand. With consumer testing, there is no chain of evidence. In other words, the government cannot use your DNA in court as evidence. So, the way it works is a sample collected from the victim or crime scene is matched with a consumer DNA database. Potential matches are then used by a forensic genealogist to produce a list potential of suspects. This list of suspects is, in turn, given back to authorities for further investigation. A current DNA specimen is collected on high priority subjects for matching with the crime scene DNA. If a match is found, appropriate action is taken by the authorities.

Unfortunately, what Family Tree has done by making ‘opt in’ the default is a disgrace and unethical. Family Tree has stomped all over their customers rights by making ‘opt in’ the default. Please read this from one of the participants of the Citizens Panel to Family Tree which Family Tree ended up not listening to.

One statement from the above : ” It would be very reassuring for customers if further data protection measures could be undertaken. For example, could an internal messaging system be used rather than sharing customers’ email addresses? ”

This is something I have argued for a long time. Ancestry has an internal messaging system which I think Family Tree and Gedmatch should both have. It’s too intrusive showing email addresses.

I was shocked, however, by the FTDNA corporate policy to take DNA data collected for genealogical purposes and repurpose this data in support of criminal investigations, Adding to my disappointment was the fact that I and all within the FTDNA database were “opted in” by default. Yes, I know I can opt out because I am paying attention. I suspect that many customers do not actively review these activities and fully understand the significance of this recent change.

Indeed this matter is a two edged sword. On one hand we want to get serious offenders off the streets, but if this door is opened, what prevents the use of data submitted for genealogical purposes being used for lesser societal offenses? Does such a move open the lid of Pandora’s box for future privacy intrusions? Opting in or being opted in could not only affect the privacy of those related to me now, but also those who may be related to me for generations to come.

I am concerned by the ethical and privacy issues this new policy presents. I am surprised that in the environment with the emphasis on privacy by FTDNA and strict adherence to EU privacy protocols, that such a policy has been adopted.

As the daughter of an adoptee I am extremely grateful to DNA science & genetic genealogy improvements allowing for the piecing together of what would otherwise be hidden roots & branches of the family tree…

My only comment is that I agree with you…and when I tried to “like” what you had said, the wordpress box came up and when I typed my address in, told me I don’t exist. I do. And I still agree with you.

Just a simple comment. Our community this week had a 45 year old murder case solved by DNA. It was a young adult couple. Was that closure for the familes–well, one of the parents is still alive and in his 90’s, so I hope it’s helping him.

I am very much in favor of using my information to help solve anything whether it be a person simply looking for ancestors, a person looking for parents or other family relationships and those looking for people that have done harm.

Thank you for writing this. My heart stopped when I read about your personal experience and want to sending a virtual hug your way. I can’t imagine the suffering you experienced but gratefully, you got your baby back.

I am one who never hesitated for a moment to keep my DNA at GEDmatch when GSK details emerged. I would also find the detective work gratifying if I were to work on solving some of these cases myself. What a spectacular contribution to our society that would be.

That said, I fully understand the position of those who want to be asked permission and the outrage from some in the GG community. There’s no easy solution, but I’ll say, it’s made me very timid about asking people to upload to GEDmatch or FTDNA. I see a future with no guarantees of privacy or protection. Hacks happen and laws change. I can live with the risk for myself but couldn’t forgive myself if someone I asked to upload didn’t fully agree to the risks themselves and then harm inadvertently came to them because of it.